Craig Nelson v FlowMatrix (Vic) Pty Ltd
[2023] FWC 123
•17 JANUARY 2023
| [2023] FWC 123 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Craig Nelson
v
FlowMatrix (Vic) Pty Ltd
(U2022/11070)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 17 JANUARY 2023 |
Application for an unfair dismissal remedy – jurisdictional objection – Applicant did not serve minimum employment period and therefore not protected from unfair dismissal.
On 18 November 2022, Mr Craig Nelson made an application to the Fair Work Commission for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Mr Nelson’s unfair dismissal application is FlowMatrix (Vic) Pty Ltd (the Respondent).
In its Form F3 – Employer Response to application for an Unfair Dismissal Remedy (Form F3) dated 29 November 2022, the Respondent asserted Mr Nelson was employed from 18 April 2022 until 14 November 2022 and that at the time of his dismissal, it had less than 15 employees. Following a telephone conciliation on 8 December 2022, the Respondent sent an email to the Commission on 12 December 2022 in which it was asserted that because Mr Nelson had only worked for the Respondent for seven months, the unfair dismissal jurisdiction “should not apply”. As such, when the matter was allocated to me on 13 December 2022, I issued Directions for the filing of material that specifically required the parties to address whether or not the applicable minimum employment period under the Act had been served by Mr Nelson.
I followed this up with a telephone mention on 15 December 2022, at which time Mr Nelson was represented by a paid agent. At the mention, I outlined the requirement for the parties to file and serve material going to the issue of the minimum employment period in accordance with the timetable I had set in the Directions. The Respondent filed and served material within the required timeframe but before Mr Nelson’s material became due, his paid agent notified my Chambers that it had ceased to act. Consequently, I sent correspondence to Mr Nelson which confirmed the requirement for him to file and serve material and the date and time of the conference/hearing. I also provided Mr Nelson with a copy of the material filed by the Respondent, Commission template documents available for his reference and utilisation and the Notice of Listing. Mr Nelson responded to my correspondence but he did not file and serve any material in response and nor did he attend the determinative conference I conducted on 16 January 2023. Mr Jason Christensen and Ms Elisabeth Cass attended the determinative conference and gave uncontested evidence for the Respondent.
Section 382(a) of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period. Section 383 defines minimum employment period as follows:
“383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer--6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer – one year ending at that time.”
Mr Nelson’s contract of employment dated 14 April 2022 reveals a commencement date of 18 April 2022. A letter of termination dated 14 November communicated that Mr Nelson’s employment was terminated with immediate effect for serious misconduct. Mr Christensen confirmed these dates and I note they are consistent with the dates Mr Nelson had outlined in his Form F2 –Unfair dismissal application. The Respondent submits that at the time of Mr Nelson’s dismissal, it met the definition of a small business employer, having had fewer than 15 employees immediately before Mr Nelson’s dismissal. In this regard, it detailed the names of 7 employees inclusive of Mr Nelson.[1] In response to assertions that had been made by Mr Nelson’s then-representative at the mention on 15 December 2022, the Respondent also outlined the names of 5 employees employed by an entity called Coolclean Pty Ltd.[2] Further, the Respondent outlined that it also had a casual employee who was not employed on a regular and systematic basis.[3] Ms Cass oversees payroll and invoicing processes for the Respondent and gave evidence that these particular details had been derived from reports she obtained from the Respondent’s payroll software program, Xero. Ms Cass said the reports outlined the names of employees employed by both the Respondent and Coolclean Pty Ltd for the period 7-14 November 2022 and she produced screenshots of the searches she had carried out as part of her preparation process.[4]
I am satisfied Mr Nelson was employed by the Respondent from 18 April 2022 until 14 November 2022. I am also persuaded that the material before the Commission establishes that there was a total of 7 employees employed by the Respondent on either a full-time and part-time basis on 14 November 2022 and a further 5 full-time and part-time employees employed by Coolclean Pty Ltd at that time. This material was not challenged and I have also noted the unchallenged assertion that there was another employee of the Respondent said to have been engaged as a casual employee on an ad-hoc basis.
As such, even if the material before the Commission is cast in the most favourable light for Mr Nelson so as to include employees of Coolclean Pty Ltd, the Respondent would still be a small business employer pursuant to s.23 of the Act and for the purpose of determining the applicable minimum employment period under the Act. This is because regardless of whether or not the Respondent and Coolclean Pty Ltd were associated entities, the total number of employees on 14 November 2022 (inclusive of Mr Nelson, the employees of both the Respondent and Coolclean Pty Ltd and the casual employee engaged by the Respondent on an ad-hoc basis) was 13.
I am therefore satisfied the Respondent was a small business employer at the time of Mr Nelson’s dismissal and that he had not completed the required minimum employment period of one year in order to be protected from unfair dismissal. This being the case, it is not necessary for me to proceed further and decide whether Mr Nelson’s dismissal was consistent with the Small Business Fair Dismissal Code.
Conclusion
As I am satisfied that Mr Nelson has not completed the required minimum employment period, he is not a person who is protected from unfair dismissal. Mr Nelson’s application for an unfair dismissal remedy must therefore be dismissed and an Order to this effect will be issued with this decision. The Commission’s file in this matter will now be closed.
DEPUTY PRESIDENT
Appearances:
J Christensen and E Cass for FlowMatrix (Vic) Pty Ltd.
Hearing details:
2023.
Melbourne.
January 16.
[1] Digital Court Book at p.54
[2] Ibid.
[3] Digital Court Book at p.55.
[4] Ibid at p.102 and p.104.
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